ROW SUBCOMMITTEE MEETING

Tuesday, November 12, 2024; 4:00 p.m.

Administration Building; Conference Room A
One Capitol Hill; Providence, RI

MINUTES

 

Subcommittee Members Present
Raymond Coia, Chair
Ronald Gagnon
Patricia Reynolds

Staff Present
Laura Miguel, Deputy Director
Anthony DeSisto, Legal Counsel
Mark Hartmann, Legal Counsel Asst

Attorneys Present
Joseph Farside for Weekapaug Fire District (WFD) Nathalie Vega for Weekapaug Fire District
William Conley for Town of Westerly (TOW)
Sarah O’Toole for Town of Westerly
Michael Rubin for Carolyn Contrata (CC)
Randelle Boots for RI Attorney General’s Office (RIAGs) Rachel Rebello for RI Attorney General’s Office

 

Chair Coia called meeting to order at 4:06

1. Approval of Minutes for October 8, 2024

Motion: Mr. Gagnon
Second: Ms. Reynolds
Motion was carried on unanimous voice vote.

2. Staff Report — None

3. Hear and decide remainder motions and objections filed by the parties

Spring Avenue Right of Way - CRMC File # 2020-11-084

Mr. DeSisto addressed the parties present stating that the previous meeting, which dealt with pretrial motions, closed with the last motion having been dealt with being “To Compel the Deposition Testimony of expert witness Joseph A Priestly, Jr.”

Mr. Farside agreed and stated that the parties had been working together and there were a few motions that had been addressed making them moot. They are:

Town of Westerly’s Motion to depose the Weekapaug Fire District – Deposition had occurred. Agreed to by Mr. Conley.

Ms. Contrata’s Motion to subpoena Waterman Engineering. Mr. Farside stated that WFD produced additional information related to a survey by Waterman Engineering and an agreement had been reached between Mr. Rubin and WFD on the authenticity of the survey and transmittal letter. Motion becomes moot. Mr. Rubin agreed to authenticity.

Ms. Contrata’s motion to compel a title report authored by the late Calvert Groton. Mr. Farside stated that the document had been released. Mr. Rubin stated that he had just heard about the release of the document and based on Mr. Farside’s representation, the motion would be moot.

RIAGs motion to compel more responsive answers to interrogatory and requests for production that they’ve propounded upon the WFD. Mr. Farside stated that the additional material was produced (200+ pages) to RIAGs office and he feels that renders the motion moot. Ms. Boots stated that the RIAGs office would like time to review the documents and asked for a continuance on this matter.

Motions not objected to:

Mr. Farside began with the WFD’s motion to issue a subpoena to Marsha Anderson Fiske. Mr. Rubin stated the motion was not objected to in principle. Mr. Rubin did express his concern about the potential of delay of the hearing due to Ms. Fiske being unavailable for the winter months. Ms. O’Toole stated that the Town of Westerly did not object to subpoena. Ms. Boots offered no objection for RIAG’s office.

Mr. Gagnon motioned for a subpoena to be issued by CRMC to Marsha Anderson Fiske for deposition by WFD based upon fact that there were no objections by any of the parties. Ms. Reynolds seconded the motion.

Chair called roll call vote:

Chair called roll call vote:
Ms. Reynolds Aye
Mr. Gagnon Aye
Chair Coia Aye

Mr. Gagnon’s motion carried.

Mr. DeSisto confirmed that there were four motions that were no longer valid and advised for a Subcommittee motion for the first three Motions as completed as well as granting the continuance for 30 days to the RIAG’s motion.

Motion – Mr. Gagnon
Second – Ms. Reynolds

Chair called roll call vote:
Ms. Reynolds Aye
Mr. Gagnon Aye
Chair Coia Aye

Mr. Gagnon’s motion carried.

Mr. Farside introduced the Weekapaug Fire District’s Motion to exclude Rhode Island Attorney Generals witnesses that were not disclosed to the parties until August 1, 2024 beyond the June 2024 deadline for discovery. Mr. Farside stated that one of the witnesses had already been deposed – James Angelo - but Cassius Spears – the second witness – had not been deposed. Mr. Farside stated that they were concerned with the continuation to add witnesses.

Mr. Farside stated that WFD had proposed an agreement to resolve the issue of adding the additional witnesses stating that if the AG’s office would answer interrogatories relating to the three witnesses disclosed after the June cut-off and if the AG’s office agreed not to propose new witnesses, the WFD would accept the witnesses – Mr. Farside stated that the proposal was turned down.

Ms. Boots stated that the witnesses were disclosed within days of learning their names and that there was no undue prejudice. Ms. Boots stated that the parties have reserved the right to supplement the witness list and that the AG’s office would not settle on the matter.

Mr. Farside stated that if the AG’s office would disclose contact information, WFD will telephone the witnesses.

The Town of Westerly by Ms. O’Toole stated that the Town had not taken a position on this motion.

Mr. Rubin stated that they had not taken a position on this motion but supported the objection, especially with the witness Paul Emma who was dealing with family health issues and refused to talk with them. Mr. Rubin stated that Mr. Emma would be a credible witness.

 

Mr. Farside reiterated his resolution stating that if the AG’s office would provide a supplement to their discovery response providing contact information for these witnesses, WFD would agree to contact the witnesses and schedule depositions – all subject to noticing the other parties.

Ms. Boot confirmed that the AGs office would provide the witness contact information.

Mr. DeSisto advised that the formation motion would include the denial of the WFD motion on the condition that witnesses after the deadline contact information be supplied to WFD; or, to approve the motion to exclude the witnesses because they were not provided by the dates certain.

Ms. Reynolds motioned for denial of the WFD motion to exclude supplemental witnesses submitted by AGs office.
Second – Mr. Gagnon

Chair called roll call vote:
Ms. Reynolds Aye
Mr. Gagnon Aye
Chair Coia Aye

Ms. Reynold’s motion carried.

Mr. Farside stated that the WFD submitted a Motion to Compel answers to interrogatories and asked that the Subcommittee focus on the motion to compel Intervenor RIAG for answers to interrogatories specifically why the RIAG’s office decided to intervene in the CRMC Proceeding along with any legal basis RIAG’s for doing so. Mr. Farside stated that Exhibit C page 4 – Request to Interrogatory No. 8. Mr. Farside stated that, through formally Intervening, the RIAG’s office hopes to push the Subcommittee towards finding of public right- of-way which calls into question the integrity of the process. Mr. Farside stated that if the response to the question is covered by privilege, a log should be provided explaining the reasons.

Ms. Boots stated that a privilege log has been provided dating back to the when they were asked to look into the matter.

Ms. Boots refers to Rule 26 which states that a party may seek only discovery that appears reasonably calculated to lead to the discovery of admissible evidence. Ms. Boots stated that the RIAG’s attorneys and staff deliberative process is not relevant and it is protected by the investigative and deliberative process privilege – backed by United State’s Supreme Court decision.

Ms. Boots stated that the RIAG’s office is able to make decisions and is able to deliberate under protection (limited).

Ms. Boots also stated that the RIAG’s office is the public’s Counsel.

Ms. Boots again stated that she did not believe the RIAG’s office needed to disclose the legal basis for their intervention, because she does believe that it is protected by work product privilege and by deliberative product privilege.

Mr. DeSisto advised the Subcommittee that they needed to decide whether or not the RIAG should be compelled to answer a question to an interrogatory as to what the basis for their intervention and how they came to the decision to do that.

Mr. Gagnon motioned to deny the WFD Motion to Compel.
Ms. Reynold seconded the motion to deny.

Mr. Farside stated the AG’s posture is different in this case because they are an actual party, not acting as Counsel to CRMC – not a situation is acting as counsel to CRMC they are an intervenor party.

Chair Coia asked if invoking privilege as to their involvement or why they decided to be involved in this case is not prejudicial to the other parties.

Mr. DeSisto stated that the ultimate issue before the ROW Subcommittee is whether or not the Spring Avenue Extension is a ROW – anything else is ancillary.

Chair called roll call vote:

Ms. Reynolds Aye
Mr. Gagnon Aye
Chair Coia No

Mr. Gagnon’s motion carried two to one.

Mr. Farside stated that the WFD had one last motion – to issue a subpoena to Ellen Kane. Mr. Farside explained that Ms. Kane appeared in an interview that aired in the summer stating many facts as to the Spring Avenue extension’s public status. WFD would like to find out what she knows.

Mr. Conley expressed concern that anyone who shows support for Ms. Contrata, they are then contacted by attorneys requesting to depose them.

Mr. Conley stated that Ms. Kane is a shoreline activist and involved in other matters besides Spring Avenue Extension. Mr. Conley stated that it is clear from the PBS interview that Ms. Kane has no new or firsthand information about Spring Avenue. Mr. Conley stated that nobody has the intention of call Ms. Kane as a witness in this matter.

Mr. Conley stated that the Town objected to the deposition on fairness and to the efficiency of this process.

Mr. Rubin stated that they were piggybacking on the Town’s brief. Mr. Rubin stated that Title Attorney’s will be involved for all parties to talk about the real estate plaque that Ms. Kane show during the PBS interview.

Ms. Boots, RIAG’s office, stated that she supported both the town and Mr. Conley.

Mr. Farside stated that Ms. Kane appeared in an interview for PBS and represented factual matters in that interview, and WFD would like to know what she knows.

Town of Westerly, AG’s office and Caroline Contrata through Mr. Rubin all confirmed that they were not calling Ms. Kane as a witness.

Ms. Reynold motioned to deny the request to subpoena Ms. Kane.
Mr. Gagnon seconded the motion.

Chair called roll call vote:
Ms. Reynolds Aye
Mr. Gagnon Aye
Chair Coia Aye

Ms. Reynold’s motion carried.

No other motions from the WFD for the Subcommittee to hear.
No other motions from the Mr. Rubin for the Subcommittee to hear.
No other motions from the Town of Westerly to hear.

Ms. Boots for RIAG, stated the AG’s office has a motion to quash the WFD proposed deposition of the RI AG representative. Ms. Boots stated that there is no prejudice by denying the access to RIAG representative because all of the proposed subject matter pieces that the WFD would like to as the RIAG about have already been asked in written discovery and RIAG’s office provided the extensive privilege log along with all the relevant answers and objections.

Ms. Boots stated that deposing opposing Counsel is sensitive and an incredible disfavored means of discovery risking running afoul of privileges such as attorney-client, work product, investigatory, and common interest.

Ms. Boots stated that the Woodland Manor test requires that the fire district must demonstrate that no other means exists to obtain the information other than by deposing opposing counsel.

Mr. Farside stated that the RIAG’s office has been evasive in its conduct since they sent the letter in 2022. Mr. Farside stated that there was an APRA litigation ongoing that relates specifically to withholdings by the AGs office of information, documents that the fire district claims it is entitled to.
Mr. Farside stated that they want to depose the AG on six topics:

Knowledge relating to use of the Spring Avenue Extension;

Knowledge concerning the use of Spring Avenue Extension other than on
foot;

Knowledge relating to the basis for your decision to intervene in this matter;

Knowledge consisting of your investigation regarding the potential
designation of Spring Avenue Extension as a public ROW.

Knowledge relating to the basis for the letter written in 2022;

Knowledge concerning documents and communications in AGs custody or
control that refer or relate to Spring Avenue extension.

Mr. Farside stated that they are looking for the evidence that the AG’s office ever conducted a legitimate investigation into the pros and cons of claiming Spring Avenue Extension as a ROW.

Mr. Farside confirmed that they are not looking to depose the Keeper of Records, but that they are looking to depose any staff member that the AG’s office wants to put forth who can explain the investigation and what they did prior to sending the 2022 letter.

Mr. DeSisto asked for status of the APRA Litigation.

Mr. Farside stated that the hearing on cross-summary judgement motions was set for early December in Superior Court before Judge Raspallo.

Ms. Boots explains that the AG’s office holds a unique situation of being a both a party and legal counsel in this case. The Attorney General's office needs to be able to have those internal discussions of pros and cons without giving away the pros and cons to the other side that may be skewed.

Ms. Boots explained that all the documents that the AG’s office has have been produced or produced in a privilege log that gives a summary of what the document is and discusses but withholds the privileged information.

Ms. Boots stated that WFD has used other avenues to get the most he can out of discovery which is what is preferred when asking questions of opposing counsel. WFD does not meet the test that they are required to meet – which is no other means to acquire that information.

Mr. Farside stated that they have propounded the AG’s office, but the AG’s office have not answered the questions.

Ms. Boots stated that they questions being asked have all be asked in written discovery.

Ms. Boots also stated that the WFD had not provided a privilege log to the AG’s office on their request.

Mr. Conley, Town of Westerly, did not have anything further to add.

Mr. Rubin stated that the scope of discovery is very broad meaning that it’s not just about relevant evidence but also anything that can lead to relevant evidence.

Mr. Rubin stated that the questions being asked now have nothing to do with the ROW itself but about motives and interests of the parties involved.

Discussion amongst the Subcommittee and Legal Counsel regarding process, items already denied through other motions, and APRA litigation.

Mr. Gagnon stated that he would be inclined to wait until the Superior Court decision on the APRA litigation and made a motion to continue hearing the motion to quash to a future date once Superior Court decides on APRA Litigation.

Ms. Reynolds seconded the motion and asked if there is a possibility that there is some difference in information that would be produced with an APRA request. Mr. DeSisto stated that it could be and can be addressed at the continued hearing.

Chair Coia called roll call vote:
Ms. Reynolds Aye
Mr. Gagnon Aye
Chair Coia Aye

Mr. Gagnon’s motion carried.

Mr. Gagnon motioned for the next hearing to be the first meeting of January, 2025. Ms. Reynolds seconded the motion.

Chair called roll call vote:
Ms. Reynolds Aye
Mr. Gagnon Aye
Chair Coia Aye

Mr. Gagnon’s motion carried.

Mr. DeSisto stated that scheduling matters, location of hearing, and structure of hearings could be discussed at a future date.

Mr. Conley stated that he was court excused for the first and second week in February and would not be available.

Discussion on the Status of the subpoenas for Save The Bay and Matthew Ferraro. Mr. DeSisto asked Mr. Farside to prepare them and send them to CRMC for his review so they can be issued by the Executive Director.

4. Adjournment:

Motion: Ms. Reynolds
Second: Mr. Gagnon
Motion carried on unanimous voice vote.

Meeting adjourned at 5:21 p.m.

 

Submitted by:
Lisa A. Turner
CRMC Recording Secretary

 

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